High Court orders ISPs to block sports pirating websites

The High Court has ordered internet service providers (ISPs) to permanently block sports pirate websites infringing on copyrighted material.

The latest ruling comes almost three years after pay channel MultiChoice Kenya filed a suit against Safaricom PLC and Jamii Telecom Ltd, seeking to compel the ISPs to block live sports streaming sites on their networks.

Last year, the High Court had initially issued a temporary order to the ISPs to block the said infringing content, but it was swiftly stayed by the Court of Appeal on application by Safaricom.

Making the ruling on Thursday, June 23, Justice Wilfrida Okwany said MultiChoice Kenya had lawfully issued valid takedown notices to the ISPs and they ought to have complied.

Takedown notices

She found that the ISPs have not given any lawful excuse for their failure to comply with the takedown notices.

After the ruling, Safaricom requested, and was granted by the court, 72 hours to comply with the takedown notices.

MultiChoice based its application on provisions of section 35B of the Copyright Act, which enables an aggrieved person to approach court and seek an injunction against a person facilitating the infringement of copyright.

The section says: “A person whose rights have been infringed by content to which access is being offered by an Internet Service Provider (ISP) may request by way of a takedown notice that the ISP removes the infringing content.”

The court heard that MultiChoice had issued the internet providers with a notice dated October 29, 2019, to take down the websites but they had delayed to do so. The ISPs have long opposed the takedown provisions in the Copyright (Amendment) Act and had even sought to have the takedown provisions wholly repealed from the Act 18 months after their coming into force.

Exclusive rights

SuperSport has made substantial financial investments to acquire and hold the exclusive broadcast and transmission rights for Uefa (the Union of European Football Associations) Super Cup, Championship and Uefa Europa Leagues, English Premier League and La Liga in Kenya and other sub-Saharan Africa countries.

The constant illegal broadcasting over the internet of their protected content continues to dent the firm’s revenues from paid up subscriptions.

MultiChoice Kenya moved to court after Safaricom and Jamii Telkom failed to act on its takedown notices.

The Kenya Copyright Board (Kecobo) and Communications Authority of Kenya (CA) were listed as interested parties in the suit.

Representatives of civil-society copyright bodies, which work to fight content piracy and protect intellectual property, have welcomed the verdict.

“This is a red-letter day in the fight against piracy in Africa,” said MultiChoice Kenya Managing Director Nancy Matimu.

“We have been fighting for years to ensure that there are legal copyright protections, and that those protections are enforced.”

“The court has reaffirmed the stance of the law that copyright must be protected.”

Enormous implications

According to Ms Matimu, the case would have enormous implications for the content industry right across the continent.

“The Kenyan courts have sent a message to the rest of the world that we respect the right of content creators to earn a living from their work,” added Ms Matimu.

She said that, if governments in the rest of Africa followed the Kenyan example, it would go a long way towards strengthening the standing of Africa as an investment partner.

She expressed optimism that other African countries will follow suit by introducing legislation to protect artists, musicians, broadcasters and all content creators, to prevent their content being pirated and used illegally.

“This is a landmark ruling. With this verdict, Kenya is saying that any business looking to invest in Kenya can rest assured that their intellectual property will be protected,” Ms Matimu said.

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